I got a letter emailed to me today from Attorney-General Chris Finlayson. In it he thanked me kindly for my efforts, before in the nicest possible way telling me that my idea for fixing the "problem" of covert police surveillance created by the Supreme Court's decision in Hamed v R faced a number of complicating problems, required too much fiddling for the limited time left to this Parliament, and just generally wouldn't work.

Fair enough - I guess if it was that simple a solution, someone else would have thought of it before me. And to be honest, I'm not enough of an expert on the legislative framework surrounding search powers to confidently say my idea is the best available one (in the sense of being the least-bad approach to take, which is what we're faced with here). The Minister has lots of folks available to advise him on just that point, and if they say mine was a bad idea then I can't really gainsay that.

So what then is theGovernment proposing? Well, its "revised version of the bill" is intended to do this:

The Video Camera Surveillance (Temporary Measures) Bill will express Parliament’s intent that any lawful search in which covert video surveillance is used is not unlawful just because of that surveillance.

The bill does not provide any legal power that did not exist before the Supreme Court decision of 2 September to use covert video surveillance.

However, the Courts will continue to have the same power to exclude video surveillance evidence that has been obtained unreasonably, and in violation of the New Zealand Bill of Rights Act’s protections against unreasonable search and seizure, despite the provisions of the Bill.

So basically the Government is going to say that the use of covert video surveillance as part of a search is lawfully authorised ... unless that search (or the use of covert video surveillance as a part of it) is unreasonable ... in which case it is not lawfully authorised because it will breach s.21 of the NZ Bill of Rights Act 1990 (and so the evidence gathered by it may be tossed out of court, if the courts decide to do so under the Evidence Act 2006).

If that looks a bit complicated, then that's because it is. What factors will make an otherwise lawful use of covert video surveillance "unreasonable"? How much of the Hamed ruling survives this proposal? And is it really the case that:

The Bill will mean that Police will be able to resume operations involving surveillance. Around 50 operations were discontinued after the Supreme Court’s decision.

After all, does Parliament saying the general use of covert video surveillance is lawful really mean its use in every one of these 50 operations is "reasonable"? And if its use in these operations is (and was) "reasonable", then why were they stopped following Hamed? They can't allinvolve trespassory use of covert video - can they?

(On this last point, I note that the Attorney-General told Charles Chauvel back in this letter that legislation was necessary because of a number of ongoing investigations involving both search warrant based and "over the fence" video surveillance - but how is this latter form of evidence gathering affected at all by the proposed bill (or the Hamed ruling, for that matter)?)

One other issue with the way this bill is being portrayed. The Attorney-General tells us that:

“This Bill has been carefully drafted to have the effect of preserving the common law as it was prior to the Supreme Court’s decision of 2 September,” Mr Finlayson said. “It preserves the understanding shared by successive governments, Police and the Court of Appeal before that decision.”

I'm not sure this is entirely accurate. Certainly this post by Steven Price (along with a truly heroic comment by Felix Geiringer) would take issue with the Minister's claims. However, that may well be a point of rhetoric - the issue is not so much whether the proposal is or is not the same as the law before the Supreme Court's intervention in Hamed, but rather is it a good one for the present?

And fortunately people will get some chance to have a say on that issue. The Government has agreed that a shortened select committee process will be held for this measure. Good on it for doing so - and good on ACT and Labour for demanding that it do so.

I'll be making a submission to the Committee (when I've seen the revised Bill, of course). But I thought I might try a bit of crowd sourcing of its content ... what do you think I should say in it? The comments section below awaits your participation ...

Comments (10)

A point that may seem semantic, but which shouldn't be to our Attorney-General: "the common law as it was prior to the Supreme Court's decision of 2 September" is in fact... what the Supreme Court said it was on 2 September. When our top court rules on some past behaviour, and says it was unlawful, then it was unlawful when it happened. Any other statement about the law isn't "the way the law used to be", it's wrong. Fair enough to point out that it wasn't the way the law was understood (even by lower courts) at the time (though actually, I think he's overstating that too).

In short, the Attorney-General doesn't get credit here for merely winding the clock back, just freezing it a few weeks ago. He's overturning a Supreme Court decision, and amending our law with retrospective effect.

I agree with Stephen and I am not sure that over the fence videoing is necessarily illegal. Elias seemed to be really upset that a trespass occurred.

And the Government could pass this bill but not make it retrospective. The most severe charges survived Hamed. So why proceed with a reversal of the Supreme Court AND make it retrospective? A more subtle solution is possible.

by on September 26, 2011

As I understand it, the remaining problem not fixed by the Evidence Act is with new investigations. How does this rabbit grab people:

- no retrospective legislation

- leaving a camera requires a warrant

- only police can look at the captured video; presenting it in evidence is illegal

Warranted camera surveilance from over the fence (as opposed to private property) is legal. From the road or from the neighbour's house with permission OK.

Unwarranted camera surveilance is wrong unless in a public place as anyone is allowed to do so.

Retrospective legislation is always wrong except in exceptional cases. Not in this case.

(Is it possible that National has contrived this issue now in order to embarrass the Opposition? Last night on Native Affairs, Mr Findlayson looked very uncomfortable when defending his stated position.)

The Government's contention that the Bill will restore the law to its previously understood form is, well, disingenuous and marks the possibility of a constitutional crisis.

In the Supreme Court Chief Justice Elias said “I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used.”Further, “[i]n circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”

Justice Blanchard more charitably said “[e]ven taking the view most favourable to them, the police seem to have been prepared over and over to run the risk of acting in breach of the law. They did not obtain legal advice and should have done so.”He further said, “… The police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable. Winkelmann J [in the High Court] made a finding that the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so.”
So it appears that either Finalyson or Elias and Blanchard are, well, mistaken. I wonder who?

I'm quite enamoured with Idiot/Savant's latest suggestion as a means for allowing this to happen during the interregnum: basically, amend the definitions of interception device and private communication in s 312A of the Crimes Act, to cover what you'd want police to be able to do here.

That, or add new words each time those appear "... interception device or video recording device ...".

I had thought of this idea myself and wondered why it hasn't been picked up by the Government. I suspect a reason it does not appeal is because of the limited range of offences for which such warrants can be obtained ... in particular, the fact you can't get one for drugs offences. By the sounds of it, this is an area in which the Police use video a lot (no doubt for watching dope plantations and the like).

I had thought of this idea myself and wondered why it hasn't been picked up by the Government. I suspect a reason it does not appeal is because of the limited range of offences for which such warrants can be obtained ... in particular, the fact you can't get one for drugs offences.

Okay then, make similar changes to interception warrants under the Misuse of Drugs Amendment Act 1978.

by on September 29, 2011

Does anyone notice that the Police and gov't appear to be using subterfuge (omitting key information, like what are the cases they are talking about that need this fix) to pass this through. If it is in fact just 'dope growers' that they can not now catch because of this ruling, then that belies a national conversation we are waiting to have about the legal status of cannabis and whether personal use of cannabis (including cultivation) is indeed a 'crime'. No one has mentioned this except me that I know of, and now Andrew with his comment above. Doesn't it worry anyone that we are potentially making these type of rash changes under urgency without adequate discussion or background information just to shore up a failed 'war on drugs' that we have already been told to end by numerous select committes, law commissions and UN Commissions? If they were to just amend the Misuse of Drugs Act as Graeme reccomends then they would have to answer questions about why they aren't amending the whole Act along the lines of the suggestions by the law commission, thus the need for urgency and no discussion, because that would put them in an uncomfortable position in which the public would have to deliberate about what is a 'serious crime' and does pot use qualify you to have you bill of rights suspended. What they are doing now allows Police to make the decision, and they decide YES because they want to claim higher dollar numbers for preventing drug harm when they sieze the houses of personal pot users. It all seems so painfully obvious, no one has rebutted my assertions but there is deafening silence. If I appear to be wrong about this please call me out so I can shut up. If these ideas seem right/logical/plausible why are such legally knowledgeable people on this forum not getting up in arms?!